Exceptions

• Author: Karin de Vries
• Pages: 47-58

47

4EXCEPTIONS

4.1Genuine and determining occupational requirements (Article 4)

In the Netherlands, national legislation provides for an exception for genuine and

determining occupational requirements.

Race, sex. In the GETA, the exception for genuine occupational requirements (‘GOR

exception’) only exists for the grounds of race and sex. As far as race is concerned, this

has been laid down in Article 2(4) of the GETA:

‘The prohibition of making distinctions on the grounds of race as it is contained in

this Act, shall not apply:

a.in cases where a person’s racial appearance is a determining factor, provided

that the aim is legitimate and the requirement is proportionate to that aim;

b.if the distinction concerns a person’s [outward] racial appearance and

constitutes, by reason of the nature of the particular occupational activity

concerned, or of the context in which it is carried out, a genuine and

determining occupational requirement, provided that the objective is legitimate

and the requirement is proportionate to that objective.’205

In contrast to Article 4 of Directive 2000/43/EC, which speaks of a characteristic related to

racial or ethnic origin, the Dutch provision specifies that only outward racial appearances

may constitute a genuine occupational requirement.206This means that ‘race’ as such is

not regarded as a permissible ground for a particular distinction.207Only physical

differences (skin colour, hair type, etc.) may form the basis for a distinction, to the

exclusion of sociological differences. The GETA does not, for example, allow a care

institution, which looks after the well-being of young offenders of Moroccan origin, to

express in a job advertisement a preference for a social worker of Moroccan origin.208 On

the basis of Article 4(6) GETA, these exceptions have been set out in a Governmental

Decree of 1994.209 The Decree exhaustively indicates to which professional activities the

Article 2(4) exceptions apply. These are:

a.The profession or activity of actor, dancer or artist insofar as the profession or activity

relates to the performance of a certain role (elaboration of subsection b);

b.Mannequins, models for photographers, artists, etc., insofar as requirements can

reasonably be imposed on outward appearances (elaboration of subsection b).

Religion, belief, sexual orientation. Although Article 4(1)of Directive 2000/78/EC

would have allowed for it,no GOR exception has been enshrined in the GETA for these

grounds. However, in the context of the exceptions of Article 5(2) of the GETA, institutions

founded on religious principles, or on political principles, or schools founded on the basis

of a religious denomination may impose requirements in relation to the occupancy of a

post which, in view of the organisation’s purpose, are necessary to uphold its founding

principles. However, the Article 5(2) GETA exceptions were not rationalised by the idea of

‘genuine occupational requirements’. They were regarded as necessary in order to reconcile

205 Subsection b was inserted by the EC Implementation Act. With this amendment the government intended to

follow the wording of the directive more closely. See Explanatory Memorandum to the EC Implementation

Act, Tweede Kamer, 2002-2003, 28 770, no. 3, p. 10. However, prior to implementation the ‘genuine

occupational requirement exception’ was also covered by the more general wording of subsection a of

Article 2(4).

206 Explanatory Memorandum to the EC Implementation Act,Tweede Kamer, 2002-2003, 28 770, no. 3, p. 10.

207 Gerards, J. H. and Heringa, A. W. (2003), Wetgeving gelijke behandeling (Equal treatment legislation),

Deventer, Kluwer, p. 129.

208 See ETC 1997-51.

209Governmental Decree on Equal Treatment (Besluit Gelijke Behandeling), Staatsblad 1994, 657, last

amended in 2012: Staatsblad 2012, 565.